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18-2737-cr 

United States v. Nicholson 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel. 

 

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 29th day of October, two thousand nineteen. 

PRESENT: JOSÉ A. CABRANES, 

REENA RAGGI, 

 Circuit Judges, 

EDWARD R. KORMAN, 

District Judge. *

 

UNITED STATES OF AMERICA, 

Appellee, 18-2737-cr 

v. 

ROYDEL NICHOLSON, 

Defendant-Appellant. 

 

FOR APPELLEE: Monica J. Richards, Assistant United 

States Attorney, for James P. Kennedy, Jr., 

United States Attorney, Western District 

of New York, Buffalo, NY. 

* Judge Edward R. Korman, of the United States District Court for the Eastern District of New 

York, sitting by designation. 
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FOR DEFENDANT-APPELLANT: Jay S. Ovsiovitch, Federal Public 

Defender’s Office, Western District of 

New York, Rochester, NY.

Appeal from an August 30, 2018 amended judgment of the United States District Court for 

the Western District of New York (David G. Larimer, Judge). 

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is 

AFFIRMED. 

Defendant-Appellant Roydel Nicholson (“Nicholson”) appeals from an August 30, 2018 

amended judgment convicting him, following a jury trial, of three counts of mail fraud and one 

count of international money laundering. The District Court originally sentenced Nicholson 

principally to 87 months’ imprisonment, to be followed by three years of supervised release, and 

ordered him to pay $145,794 in restitution. We vacated the sentence on the basis of a procedural 

error stemming from the application of the vulnerable victim enhancement under § 3A1.1(b)(1) of 

the U.S. Sentencing Guidelines (“Guidelines”) and remanded the cause for resentencing. See United 

States v. Nicholson, 739 F. App’x 696, 698–99 (2d Cir. 2018). 

On remand, the District Court resentenced Nicholson principally to a below-Guidelines 

sentence of 60 months in prison, to be followed by three years of supervised release, and $145,794 

to be paid in restitution. His advisory term of imprisonment under the Guidelines was 70 to 87 

months. On this new appeal, Nicholson only appeals the substantive reasonableness of his sentence 

of 60 months’ imprisonment. We assume the parties’ familiarity with the underlying facts, procedural 

history of the case, and issues on appeal.

“We review the . . . substantive reasonableness of a sentence under a deferential abuse-ofdiscretion standard.” United States v. Yilmaz, 910 F.3d 686, 688 (2d Cir. 2018). We will set aside a 

sentence as substantively unreasonable only if it is “so shockingly high, shockingly low, or otherwise 

unsupportable as a matter of law that allowing [it] to stand would damage the administration of 

justice.” United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (internal quotation marks 

omitted). 

Nicholson argues that his below-Guidelines 60-month sentence is substantively 

unreasonable because he was a 65-year-old “victim turned blind-money-mule who was tricked into 

participating in the Jamaican Lottery Scam,” who “was not a sophisticated individual capable of 

realizing that he was participating in a criminal activity, and [who] did not profit from his 

participation in the scam.” Appellant’s Br. at 3. The District Court considered all of these factors in 

granting Nicholson’s request for a non-Guidelines sentence, which also happens to be 15 years 

lower than the statutory maximum. The District Court explained that the fact that Nicholson was a 
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victim of the scam only highlighted the seriousness of the offense. Specifically, the District Court 

emphasized that Nicholson continued to participate in the scam after realizing that he was a victim, 

and “engaged in conduct which resulted in the [third-party] victim in this case losing . . . tens of 

thousands of dollars.” App. at 42. The District Court also noted that the offense was not a “onetime deal” but, rather, involved “repeat conduct.” Id. at 42–43. 

In sum, Nicholson has not borne his “heavy burden” of showing that his sentence is “so 

‘shockingly high . . . or otherwise unsupportable as a matter of law’ that allowing [it] to stand would 

‘damage the administration of justice.’” Broxmeyer, 699 F.3d at 289 (quoting United States v. Rigas, 583 

F.3d 108, 123 (2d Cir. 2009)). Thus, we conclude that, in the circumstances presented, a 60-month 

sentence is not substantively unreasonable. 

CONCLUSION 

We have reviewed all of the remaining arguments raised by Nicholson on appeal and find 

them to be without merit. For the foregoing reasons, we AFFIRM the August 30, 2018 amended 

judgment of the District Court. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court